Subordinate Legislation Committee

4th Report, 2013 (Session 4)

Subordinate Legislation

Published by the Scottish Parliament on 15 January 2013

SP Paper 249 Web only Session 4 (2013)

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Subordinate Legislation Committee

Remit and membership

Remit:

The remit of the Subordinate Legislation Committee is to consider and report on—

(a) (i) subordinate legislation laid before the Parliament;

(ii) any Scottish Statutory Instrument not laid before the Parliament but classed as general according to its subject matter;

and, in particular, to determine whether the attention of Parliament should be drawn to any of the matters mentioned in Rule 10.3.1;

(b) proposed powers to make subordinate legislation in particular Bills or other proposed legislation;

(c) general questions relating to powers to make subordinate legislation;

(Standing Orders of the Scottish Parliament, Rule 6.11)

Membership:

Nigel Don (Convener) Jim Eadie Mike MacKenzie Hanzala Malik John Pentland John Scott Stewart Stevenson (Deputy Convener)

Committee Clerking Team:

Clerk to the Committee Euan Donald

Assistant Clerk Elizabeth White

Support Manager Daren Pratt

SL/S4/13/R4

Subordinate Legislation Committee

4th Report, 2013 (Session 4)

Subordinate Legislation

The Committee reports to the Parliament as follows—

1. At its meeting on 15 January 2013, the Committee agreed to draw the attention of the Parliament to the following instruments—

Welfare of Animals at the Time of Killing (Scotland) Amendment Regulations 2012 (2012/355)

The Banchory and Crathes Light Railway Order 2012 (2012/345)

2. The Committee’s recommendations in relation to those instruments are set out below.

3. The instruments that the Committee determined that it did not need to draw the Parliament’s attention to are set out at the end of this report.

SP Paper 249 1 Session 4 (2013) Subordinate Legislation Committee, 4th Report, 2013 (Session 4)

POINTS RAISED: INSTRUMENTS SUBJECT TO NEGATIVE PROCEDURE

Welfare of Animals at the Time of Killing (Scotland) Amendment Regulations 2012 (2012/355) (Rural Affairs, Climate Change and Environment Committee)

4. This instrument amends the Welfare of Animals at the Time of Killing (Scotland) Regulations 2012 (―the principal Regulations‖) which the Committee considered at its meeting on 11 December 2012 in order to correct certain defects identified by the Committee.

5. Among other things, the Committee reported that paragraphs 9 to 11 of Schedule 1 to the principal Regulations raised a devolution issue because it was not clear that those provisions were compatible with EU law. It also reported that two of the provisions of Schedule 5 (repeals and revocations) appeared to be defectively drafted. It is these matters which this instrument addresses.

6. The instrument is subject to the negative procedure. It was laid before the Parliament on 21 December 2012 and it came into force on 1 January 2013, at the same time as the principal Regulations. Accordingly, there has been a failure to lay the instrument at least 28 days before it comes into force, as required by section 28(2) of the Interpretation and Legislative Reform (Scotland) Act 2010.

7. As part of its scrutiny of the instrument, the Committee considered the explanation for this failure that the Scottish Ministers provided in their letter to the Presiding Officer. The correspondence is reproduced in Appendix 1.

8. The Scottish Ministers advise that this instrument has been brought forward specifically to address the defects in the principal Regulations identified by the Committee at its meeting on 11 December 2012. It has been brought into force at the same time as the principal Regulations to avoid the coming into force of the defective provisions. Given the serious nature of the concerns raised, the Committee considers the Ministers’ reason for not laying the instrument in accordance with section 28(2) of the Interpretation and Legislative Reform (Scotland) Act 2010 to be acceptable.

9. The Committee draws the instrument to the attention of the Parliament on reporting ground (j). There has been a failure to lay the instrument at least 28 days before it comes into force, as required by section 28(2) of the Interpretation and Legislative Reform (Scotland) Act 2010.

10. The Committee finds the explanation provided by the Scottish Government for this failure to be acceptable, in respect that the purpose of this instrument was to address the defects in the Welfare of Animals at the Time of Killing (Scotland) Regulations 2012 at the time when that instrument came into force.

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POINTS RAISED: INSTRUMENTS NOT SUBJECT TO ANY PARLIAMENTARY PROCEDURE

The Banchory and Crathes Light Railway Order 2012 (2012/345) (Infrastructure and Capital Investment Committee)

11. This instrument empowers the Deeside Railway Company Limited to construct, maintain and operate a light railway over lands between Milton of Crathes and Banchory in Kincardineshire.

12. The instrument is laid before the Parliament in accordance with section 30(2) of the Interpretation and Legislative Reform (Scotland) Act 2010, but it is not subject to any further parliamentary procedure. It came into force on 28 December 2012.

13. In considering the instrument, the Committee asked the Scottish Ministers for clarification of certain points. The correspondence is reproduced in Appendix 2.

14. In this Order, a company called BRB (Residuary) Limited is referred to in article 6 without any further designation. The Scottish Ministers confirm that this reference is intended to be a reference to BRB (Residuary) Limited, a company incorporated under the Companies Acts with registered number 04146505 and having its registered office at One Kemble Street, London WC2B 4AN. The Committee considers that it would be the usual practice, when referring to a company in a document intended to have legal effect, to state the name of the company, its registered number and its registered office in order that the company may be adequately identified – and differentiated from any other company with a similar name.

15. The Scottish Ministers offer the view that, as BRB (Residuary) Limited is a publicly owned company, the reference to it is sufficiently clear without further designation. The Committee does not agree. It observes that this is a private limited company like any other incorporated under the Companies Acts. It merely happens that its sole shareholder is the Secretary of State for Transport. In the Committee’s view, the identity of the shareholders of a company does not alter the need adequately to design that company when it is referred to in subordinate legislation.

16. The Committee further observes that the other limited company referred to in the Order (the Deeside Railway Company Limited) has been properly designed in article 2 by giving its name, registered number and registered address. The Committee can see no reason why this should not also have been done in respect of BRB (Residuary) Limited.

17. Separately, the Committee notes that, while section 18 of the Light Railways Act 1896 has been cited as an enabling power in the preamble, the Scottish Ministers acknowledge that it has not been exercised in the making of this

3 Subordinate Legislation Committee, 4th Report, 2013 (Session 4) instrument. It has accordingly been cited in error. The Committee does not consider that this error has any effect on the operation of the instrument. However, in the Committee’s view it is not helpful to cite powers in the preamble to an instrument when they are ultimately not being exercised, as this may be confusing for readers of the instrument.

18. The Committee draws the instrument to the attention of the Parliament on reporting ground (h). The form or meaning of article 6 could have been clearer had BRB (Residuary) Limited been properly designed by specifying its company name, registered number and the address of its registered office. It is not clear, without reference to additional information, that the reference to “BRB (Residuary) Limited” without further specification is properly a reference to BRB (Residuary) Limited, a company incorporated under the Companies Acts with registered number 04146505 and having its registered office at One Kemble Street, London WC2B 4AN, when it appears that this was the Scottish Ministers’ intention.

19. The Committee draws the instrument to the attention of the Parliament on the general reporting ground. There is a drafting error in the preamble, in that section 18 of the Light Railways Act 1896 is cited as an enabling power when, as the Scottish Ministers acknowledge, that power has not been exercised in the making of this Order.

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NO POINTS RAISED

20. At its meeting on 15 January 2013, the Committee considered the following instruments and determined that it did not need to draw the attention of the Parliament to any of the instruments on any grounds within its remit:

Local Government and Regeneration Committee

Non-Domestic Rate (Scotland) (No.2) Order 2012 (2012/352)

Rural Affairs, Climate Change and Environment Committee

Shetland Islands Regulated Fishery (Scotland) Order 2012 (SSI 2012/348)

Marketing of Bananas (Scotland) Regulations 2012 (2012/349)

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APPENDIX 1

Welfare of Animals at the Time of Killing (Scotland) Amendment Regulations 2012 (2012/355)

Breach of laying requirements: letter to Presiding Officer

The above instrument was made by the Scottish Ministers under section 2(2) of the European Communities Act 1972 on 19 December 2012. It is being laid before the Scottish Parliament today and is to come into force on 1 January 2013.

Section 28(2) of the Interpretation and Legislative Reform (Scotland) Act 2010 has not been complied with. In accordance with section 31(3) of that Act, this letter explains why.

SSI 2012/355 is required to correct drafting defects in the Welfare of Animals at the Time of Killing (Scotland) Regulations 2012 (SSI 2012/321) which were identified by the Subordinate Legislation Committee in its 60th Report, 2012 (Session 4) published 12 December 2012.

The Committee drew the instrument to the attention of the Parliament on reporting ground (f) on account that paragraphs 9 to 11 of Schedule 1 to the instrument appear to raise a devolution issue insofar as it is not clear that they are compatible with EU law, because it is doubtful whether those provisions are properly within the ambit of Article 26 of Council Regulation (EC) No. 1099/2009 on the protection of animals at the time of killing. Article 26 of Regulation 1099/2009 enables member states to maintain in force stricter national rules that are aimed at maintaining more extensive protection of animals at the time of killing, however, Member states may only do so provided that they were in force at 8 December 2009.

The Committee considered that in relation to paragraphs 9, 10 and 11 of Schedule 1 of SSI 2012/355, it appeared that the rules contained there, while based on the current national rules in the Welfare of Animals (Slaughter and Killing) Regulations 1995, do not have the same scope because they relate to the gas stunning of pigs and poultry whereas the equivalent provisions in the 1995 Regulations concern the gas killing of pigs and birds.

SSI 2012/355 seeks to resolve this issue by amending to paragraphs 9, 10 and 11 of Schedule 1 to the Regulations to replace references to ―stunning‖ with references to ―killing‖.

In addition, the opportunity is being taken to rectify the two defective drafting errors identified by the Committee by amending regulation 30 of the SSI 2012/321 to make provision for the revocation of regulation 7 of the Welfare of Animals (Slaughter or Killing) Regulations 1995 and by correcting an error in a cross-

6 Subordinate Legislation Committee, 4th Report, 2013 (Session 4) reference in the table in Part 1 of Schedule 5 in order to repeal paragraph 3 of Schedule 9 to the Deregulation and Contracting Out Act 1994.

SSI 2012/355 requires to be laid this week to ensure that the correction comes into effect at the same time as SSI 2012/321. Given that SSI 2012/321 is due to come into force on 1 January 2012, the Scottish Government’s view is that it is necessary to breach the 28 day rule to ensure that the error identified by the SLC is rectified immediately upon it coming into force on 1st January 2013.

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APPENDIX 2

The Banchory and Crathes Light Railway Order 2012 (2012/345)

On 21 December 2012, the Scottish Government was asked:

1. It would have been in accordance with normal drafting practice for a policy note to be provided with this instrument. The Scottish Ministers are asked whether they would consider producing a policy note in order to assist the Committee and the lead Committee in considering this instrument. If the Scottish Ministers are minded to do so, it would be helpful if the note could specifically address the procedural requirements under the Light Railways Act 1896 which must be complied with in the making of an order of this nature.

2. The footnote to the preamble states that, in terms of section 22 of the Transport and Works (Scotland) Act 2007, no order is to be made under the 1896 Act on or after 28 December 2007. However, this provision is subject to the transitional provision in article 4(1) of Transport and Works (Scotland) Act 2007 (Consequential and Transitional Provisions) Order 2007 whereby nothing in section 22 applies to the making of an order if the application for the order was made before 28 December 2007. The Scottish Ministers are asked to state the date upon which the application for this Order was made.

3. The preamble narrates that the power conferred by section 18 of the 1896 Act is being exercised. That section provides that, where a company has power to construct or work a railway, it may by authorised by order to construct or work it as a light railway under the Act. The Scottish Ministers are asked to explain: a) Which provision of this Order is being made in exercise of that power?; b) What powers the Deeside Railway Company Ltd. has to operate an ordinary railway in any case?

4. Article 6 transfers rights and obligations to the Deeside Railway Company Ltd, so that the railway is to be subject to the statutory and other provisions applicable to the former railway as at 28 December 2012 (the date of coming into force of this Order). Furthermore, the company is to be entitled to exercise all rights, powers and privileges relating to the former railway, and to be subject to all obligations relating to the former railway. The ―former railway‖ is defined in article 2(1) as ―so much of the former railway referred to in Schedule 1 to this Order…‖ and Schedule 1 makes reference to ―the former railway described in and authorised by the Deeside Railway Act 1852. a) The Scottish Ministers are asked whether BRB (Residuary) Limited is presently considered to be entitled to exercise the rights, powers, and privileges, and to be subject to the obligations relating to the former railway. In particular, is BRB (Residuary) Limited considered to be the statutory successor to The Deeside Railway Company which is re-incorporated

8 Subordinate Legislation Committee, 4th Report, 2013 (Session 4)

under section 4 of the Deeside Railway Act 1852, and what is the basis for that? b) Is BRB (Residuary) Limited the company incorporated under the Companies Acts with registered number 04146505 and having its registered office at One Kemble Street, London WC2B 4AN, and do the Scottish Ministers consider this to be sufficiently clear in the absence of designation (in which respect we contrast the designation of The Deeside Railway Company Limited in article 2(1))?

The Scottish Government responded as follows:

1. A policy note has been prepared and accompanies this response to outline the steps that have taken place before the Order was made. We would mention that section 10 of the Light Railways Act 1896 provides that a confirmed Order ―shall be conclusive evidence that all the requirements of this Act in respect of proceedings required to be taken before the making of the order have been complied with‖.

2. The application for the Order was made on 12 December 2007.

3. The Scottish Government is grateful to the Committee for raising the issue of the appropriateness of referring to section 18 of the 1896 Act in the preamble. Following consideration of the Committee’s questions, we accept that that section should not have been cited, since there are no provisions in the Order which are made in exercise of the relevant power.

4. (a) Provisions such as those of article 6 are found in almost all Light Railway Orders and equivalent legislation transferring railways or former railways to new undertakers. Article 6 has effect subject to the qualifying words appearing in paragraphs (a) and (b)(ii) which provide that the transfer only applies to powers which are subsisting and capable of taking effect.

The main purpose of article 6 is to relieve BRB Residuary from duties imposed by the original railway Acts, e.g. to maintain statutorily authorised works and accommodation works such as drains and fences, since statutory duties of this nature can only be transferred by or under statute. Pre Order, BRB Residuary were ultimately liable for such duties even where (as is usually the case) the duties are discharged on a contractual basis by the owners or occupiers of the abandoned railway.

The liabilities in question – which were originally imposed on the former company which was established by the original Act – were transferred to its successor companies by a series of Acts of Parliament and subsequently by the Transport Act 1947 to the British Transport Commission which itself was set up by the 1947 Act as part of the nationalization of the rail network.

The national rail network together with related liabilities was transferred from the British Transport Commission to the British Railways Board by the Transport Act 1962. Eventually, the network was privatized under the Railways Act 1993

9 Subordinate Legislation Committee, 4th Report, 2013 (Session 4) although certain functions – including responsibility for statutory liabilities relating to abandoned railways – remained with the British Railways Board and were transferred to BRB (Residuary) Limited which was formerly a subsidiary of the Strategic Rail Authority and is now, following the abolition of the SRA, wholly owned by the Department for Transport.

(b) We can confirm that BRB (Residuary) Limited is the company incorporated under the Companies Acts with registered number 04146505 and having its registered office at One Kemble Street, London WC2B 4AN. However, since BRB (Residuary) Limited is a publicly owned company the references to it in the Order should be sufficiently clear without the need for its registered office to be stated in the Order.

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